Promoting the role of land law in economic and social development and changing law and practice in developing and post-conflict countries.
Submitting InstitutionBirkbeck College
Unit of AssessmentLaw
Summary Impact TypePolitical
Research Subject Area(s)
Law and Legal Studies: Law, Other Law and Legal Studies
Summary of the impact
Professor Patrick McAuslan's research changed the international
development community's view about the role of land law reform in
sustainable development and poverty alleviation. Until his research
identified how policy-makers should and could use land law reform to
achieve their development aims, international agencies did not consider
that land law reform had a significant role in furthering economic and
McAuslan disseminated and continued his research during many consultancy
assignments for the World Bank (WB), the EU, UN agencies, DFID and other
international development bodies. He also reviewed planning and land law
in many countries, often significantly shaping the resulting legislation.
This case relates to research undertaken by Professor McAuslan at
Birkbeck School of Law between 1993 and 2011. His research examined the
role that law plays (and should play) in development, concentrating on
land tenure and urban planning.
McAuslan argued that poorly functioning land markets contribute to
informal arrangements for land settlement — and such informal settlements
are not an outcome of poverty (as generally perceived by development
agencies) but a contributing factor. Lack of formal registration
of land, an inability to reliably identify specific lots, and insecure
ownership prevent occupiers from using "their own" property as collateral
to borrow money. Improving the security of land rights (whether by formal
or local/informal registration) is thus an important tool for economic
development, since it serves to increase land-related investment (and
hence the efficiency of this prime factor of production), as well as
facilitating access to credit.
During 1995-1998 fieldwork in the Gambia, Swaziland and Namibia for the
UN's Food & Agriculture Organisation (FAO), McAuslan analysed land
acquisition and registration. He used his findings to develop principles
for best practices which could be promoted by the FAO and used by
governments, regardless of their political persuasion or the underlying
basis of their legal systems.
McAuslan's research during this period is discussed in outputs 3.1, 3.2
and 3.3, describing the evolution of policies and laws on tenure security
in Africa, and demonstrated how the colonial legacy shaped current needs.
He studied the tension between the external donors' goals to improve land
law and create a more efficient market for land; and the country's
internal pressures for secure tenure by informal arrangements. He also
examined what inhibits governments from completely supporting reforms that
enable or help informal settlements.
In the late 1990s, McAuslan considered how realistic it was to use land
law reform as a vehicle for radical social reform, based on his experience
of drafting new land laws in Uganda and Tanzania (3.4) and his subsequent
observation of their frustrated implementation. He noted that certain
conditions — a lack of capacity or political will to implement the
legislation effectively; very slow or limited dissemination and awareness
of new rights; personal disincentives for officials in central government
to implement the new laws — impeded reform or created a situation where
only those with the resources to employ lawyers will benefit.
These insights (included in 3.1) informed McAuslan's approach to land
management reform in subsequent contexts, e.g. Afghanistan 2007 (see
section 4) where strong vested interests impeded the effective
implementation of new laws.
McAuslan also significantly contributed to the recognition of the
importance of customary land tenure and the need to accept the plurality
of legal systems in many parts of the world. His research (specifically
output 3.3) stimulated debate and pointed the way forward on these matters
for the UNDP and CGIAR (the Consultative Group on International
Agricultural Research, see section 4). His research (3.5) also discussed
how different social, religious and political circumstances pertaining in
different countries affected women's ability to access land.
References to the research
3.1 S. Keith, R. Knight. J. Lindsay, P. McAuslan, P. Munro-Faure, D.
Palmer & L. Spannenberg. (2009) `Compulsory
Acquisition of Land and Compensation' FAO Land Tenure Studies
10. Peer-reviewed by a multinational panel of FAO experts before
3.3 McAuslan, Patrick. (2002) `Tenure and the law: the legality of
illegality and the illegality of legality' in Payne, G. (ed) Land,
Rights and Innovation, pp. 23 - 38. Peer-reviewed edited
collection. ISBN-10: 1853395447 ISBN-13: 978-1853395444.
3.4 Tanzanian Land
Act, and Village
Land Act (both 1999). These laws have been commended in
Cotula, L., et al., Land tenure and administration in Africa: lessons
of experience and emerging issues, International Institute for
Environment and Development, 2004 (see section 1.4 which describes the new
laws in Tanzania and Uganda as part of "a new generation of land
policies and laws in Africa ...representing important innovations"
because of their efforts to capture all land rights in records); and in
Palmer, R. "The Tanzanian Land Acts, 1999: An Analysis of the Analyses,"
(see 5.6, pg. 2) Oxfam, 1999. More recently, and significantly, these laws
have been held up by FAO as exemplars of good practice (see section 4
3.5 McAuslan, Patrick. (2010) 'Personal reflections on drafting laws to
improve women's access to land: is there a magic wand?' Journal of
Eastern African Studies 4:114. Peer reviewed journal. http://dx.doi.org/10.1080/17531050903556683.
Reprinted as chapter in Land Law Reform in Eastern Africa: Traditional
or Transformative? A critical review of 50 years of land law reform in
Eastern Africa 1961 - 2011, McAuslan, Patrick, Routledge, 2013
Other general indicators of quality are that Professor McAuslan is
repeatedly requested for further assignments by commissioning bodies; that
his reports are uniformly accepted by commissioning bodies; and that he
has long been regarded as a leading global expert by the UN and World Bank
as can be corroborated by the individuals in section 5.
Professor McAuslan was awarded the MBE in 2001. His nomination by the
Permanent Secretary of DFID was in recognition of Professor McAuslan's
contribution in Uganda, drafting and supporting the implementation of the
Details of the impact
Significance and reach: Professor McAuslan sets the
standard for land law in areas such as customary tenure, women's access to
land and resettlement. He converts his research into practical guidance,
policy advice, or actual legislation via his many consultancies for the
World Bank, the UN and others. This case study focuses on a few
representative assignments but McAuslan's reach extends beyond those.
During 2008-1013 he also advised on, and drafted new legislation for
Albania, Maldives, Somaliland, Cambodia, Ghana and Bangladesh.
Impact on land law legislation: Tanzania, Kenya, Laos
McAuslan's Tanzanian land laws (3.4) were established as a benchmark for
good practice in lawmaking for customary land rights by the FAO's
Development Law Service in a 2010 review of best practices in legislation
(see 5.5). It commended the laws as "good examples for future laws in
other nations" specifically for governance issues (pg. 224); and for
safeguards against discrimination/abuses of power (pp. 225-6).
Significant parts from the Tanzanian Land Act can be found unchanged in
the Kenyan Land Act 2012, demonstrating that although he had no personal
involvement in the land reform process in Kenya, McAuslan's principles and
approach were influential.
McAuslan discussed his experiences of drafting Tanzania's forestry
legislation in 2002 at a conference in 2009, which led directly to his
appointment in 2012 as a UNDP-funded policy and law advisor to the
President of the Economic Planning and Finance Committee of the Laos
National Assembly. McAuslan's role was to support the President of the
Committee in making amendments to the national land policy then being
drafted by the government, about which she had significant concerns.
McAuslan's intervention was successful in preventing further progress with
that draft; and (drawing once again on the principles framework published
in 3.1 and 3.2) he prescribed how to strengthen and improve future drafts
Impact on development policy
McAuslan's research on customary land tenure (3.3, 3.4) has had a
significant influence on development policy, establishing that the
importance of customary land tenure must be recognised, as must the need
to accept the plurality of legal systems in many parts of the world (see
5.8, 5.1). 5.1 comments that McAuslan directly influenced the drafting of
several sections of the FAO's Voluntary Guidelines on Land Tenure (2012)
which he advises are now considered among the most important international
statements on land governance.
McAuslan's views on decentralisation and his FAO proposals (3.1) inform
the land reform policies in an important 2013 report by key stakeholders,
produced to spearhead the preparation and implementation of the framework
and guidelines of land policy for Africa. (See 5.9, the authors of which
are the FAO; the Land Policy Institute of the African Union Commission;
the UN Economic Commission for Africa; and the African Development Bank.)
Impact on policy and practices relating to resettlement —
McAuslan's research (especially 3.1) was instrumental in the World Bank's
decision to devise and impose regulatory impact assessments and action
plans as necessary conditions for receipt of World Bank funds for projects
In 2007 the World Bank asked McAuslan for his opinion on Afghanistan's
legal framework on land acquisition and resettlement required for proposed
WB-funded infrastructure projects. This led in 2010 to its request for
McAuslan to advise the Afghan Ministry of Energy and Water (MEW) on
resettlement practices. Subsequently, he drafted a Resettlement Policy
Framework (RPF) for the MEW's submission to the World Bank for a $140m
project to repair and expand small scale water and irrigation works in
Afghanistan. This RPF was approved by World Bank and is now used to
determine compensation for locals. McAuslan has drafted further RPFs for
the Ministry of Mines (mining development project) and again for MEW
(major transnational electricity transmission project stretching from
Kyrgyzstan to Pakistan). These RPFs have been used by those Ministries to
prepare action plans to required World Bank standards (see 5.3).
Not only have these RPFs enabled the Afghan government to fulfil the
conditions for World Bank funding for those projects, but the RPFs
themselves have helped build expertise and good practice amongst
Afghanistan officials involved in land acquisition with respect to
compensation for displaced locals.
Other work in Afghanistan met with some resistance to change the status
quo. For example, McAuslan's work to review Land Acquisition Law and Land
Management Law for the Afghanistan Land Authority (AZARI) was accepted by
the World Bank, but met with local resistance. However, AZARI's continued
use of his expertise suggests that opportunities for influence persist,
and 5.2 can confirm McAuslan's recent and ongoing engagement with the
Afghan government, advising it on revisions to its Land Acquisition law.
McAuslan's contribution during the impact period laid the groundwork by
presenting model solutions and effecting debate amongst stakeholders on
actions which might be implemented at a more conducive time.
Impact on women's access to land
McAuslan's research on women's access to land (3.5) was the basis for a
key checklist in a FAO guide (5.7) on how to ensure gender-equitable legal
drafting. The FAO guide was the first in a series of technical guides on
governance of tenure, to provide advice on "mechanisms, strategies and
actions that can be adopted to improve gender equity in the processes,
institutions and activities of land tenure governance". McAuslan's
research was also the source of information on the disadvantages of appeal
mechanisms involving courts or tribunals (pg. 35); and of the principle
adopted by the guide that land and family law should be reformed together
Sources to corroborate the impact
5.1 World Bank, Lead Counsel: Land and Natural Resources [contact details
5.2 World Bank, Senior Development Specialist [contact details provided].
5.3 Independent political economist specialising in land tenure issues
[contact details provided].
5.4 World Bank, National Safeguards Assessor [contact details provided].
recognition of customary land rights in Africa: An investigation into
best practices for lawmaking and implementation, Knight R, FAO
5.6 Palmer, R. The
Tanzanian Land Acts, 1999: An Analysis of the Analyses, Oxfam,
Land for Women and Men: A technical guide to support the achievement
of responsible gender-equitable governance of land tenure,
Daley E et al, FAO 2013.
Reform In The Broader Context Of Southern Africa, keynote
presentation by Robin Palmer, at Land Reform from Below: Decentralised
Land Reform in Southern Africa conference, Johannesburg April 2008.
Africa's Land for Shared Prosperity, International Bank for
Reconstruction and Development /The World Bank, 2013.